THE SAFEGUARDING OF INTANGIBLE CULTURAL HERITAGE:LAW AND POLICY ACASE STUDY OF ANGKOR A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy BY GEORGINA LLOYD UNIVERSITY OF SYDNEY JULY 2009
THE SAFEGUARDING OF INTANGIBLE CULTURAL HERITAGE: LAW AND POLICY
Mar 17, 2023
Welcome message from author
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Microsoft Word - Thesis March 2010.docxA CASE STUDY OF ANGKOR
A thesis submitted in partial fulfilment of the
requirements for the degree of
Doctor of Philosophy
i
Abstract
Intangible cultural heritage (ICH) is a relatively recent addition to the corpus of
international heritage law. Traditional conservation theory, which is the foundation of
heritage law, has long delineated heritage only through physical manifestations such
as monuments, sites and objects. Intangible heritage does not fit into these categories.
To accommodate the introduction of living, non-material forms of heritage, the notion
of cultural heritage, as defined in legal instruments, is undergoing a phase of re-
conceptualisation. This thesis explores the shifts and divergence that have taken place
within the heritage discourse to accommodate the notion of ICH. It explores the
transformation of cultural heritage from its focus on tangible manifestations to a
broader understanding of heritage in both tangible and intangible forms and the links
between them. The conceptual development of intangible heritage reflects an
intellectual shift stemming from discourse in international forums and a general
criticism that monuments do not embody all forms of cultural heritage. This thesis
also examines the delineation of intangible cultural heritage within heritage law and
the broader discourse. It proposes to broaden the concept of ICH, as currently
conceived, as a set of characteristics which constitute the concept.
This thesis further explores how legislation relating to the heritage has been drafted
and how safeguarding mechanisms have been developed. The development of
intangible heritage theory and ICH law is shown to have been driven substantially by
the work of UNESCO. This work has culminated in the adoption of the Convention
for the Safeguarding of the Intangible Cultural Heritage (2003) (ICH Convention) and
the Convention on the Protection and Promotion of the Diversity of Cultural
Expressions (2005). In addition to these binding normative instruments, intangible
heritage law finds its source in soft law instruments—i.e. legal instruments that do not
provide legally-binding obligations. Soft law instruments are fundamental for the role
that they play in the development of legal precepts which often develop to become
customary law or jus cogens. Twelve soft law instruments are identified as having
made a substantial contribution to the development of ICH law. The precepts
enshrined within these documents inform safeguarding measures in legislative and
policy documents. This thesis presents a critical analysis of both hard and soft law
ii
instruments. It is argued that ICH law draws upon, and finds its foundation in, three
fundamental principles—the principles of cultural rights, the right to education and
the right to community participation. These rights are framed, in the context of this
study, as principles which developed within soft law and are further clarified within
the ICH Convention.
The critical analytical approach to intangible heritage law taken in this exploration
reveals a number of issues. The first issue is that the national legislative instruments,
and the mechanisms for safeguarding outlined within them, are still largely founded in
Western conservation theory and legal norms. This approach is not necessarily
reconcilable with the notion of ICH or the local realities of Asian legal systems. The
legal systems of many countries in Asia comprise not only state-based legal systems
but also unofficial legal systems based on social power structures and
customary/community law. The second issue is that there is a fundamental
inconsistency between the international and national legal frameworks on heritage
conservation. The Convention for the Safeguarding of Intangible Cultural Heritage
places strong emphasis on community participation. However, legislating at the
national level for the safeguarding of ICH to meet State Party obligations established
by the Convention results in a top-down approach that largely transposes Western
legal norms into non-Western legal contexts. On the one hand the Convention calls
for bottom-up community safeguarding measures, which would incorporate local
customary laws and values, and on the other it still relies heavily on top-down state
legal systems. This is particularly manifested in some Asian countries where aspects
of customary legal systems are themselves an element of the countries’ ICH and as
such are the object of safeguarding measures, yet may be in conflict with state legal
systems.
Through a practical examination of Cambodian heritage law, as applied to the Angkor
World Heritage Site, this thesis indicates that the legal framework that protects
Angkor is overwhelmingly focused on tangible heritage. The existing framework is
largely unchanged from that of the former French administration and reflects an
outdated Eurocentric notion of heritage in its physical form. The focus on the tangible
has been perpetuated since the World Heritage Convention was introduced by the
international emphasis placed on the preservation of the monuments. This thesis shifts
iii
the focus to Angkor’s intangible cultural heritage. The analysis highlights a
substantive gap in the legal framework and the need for a holistic management
approach that incorporates the safeguarding of both the physical and the intangible
cultural heritage. The thesis further explores, through the case study of Angkor, how
international obligations are interpreted and implemented at a local level. The
divergent ideologies of international law and policy, and of states and local
communities, are further highlighted. The role of local customary systems, in the
practice of intangible heritage, presents further conundrums that need to be examined.
In order to safeguard intangible heritage values a fine line must be walked between
the freezing of culture, the commodification of tradition, the commercialisation of
customs, the authenticity of practice, the maintenance of ethnicity and identity, the
realisation of cultural rights and the politicisation of heritage. The tackling of these
issues implies the need for a balance of competing forces–state and local, private and
public, law and custom – and presents both challenges and opportunities for the
protection of ICH. The findings presented in this thesis conclude that the safeguarding
of ICH necessitates a broader approach than that inherent in the ICH Convention. It
argues that further emphasis needs to be placed on local communities’ involvement in
safeguarding measures. This requires a fundamental power shift and a move away
from state-based regulatory frameworks as the sole means of protecting ICH. The use
of localised culturally-sensitive policy approaches, which incorporate community-
based legal systems and cultural rights theory, is one possible solution. This broader
approach goes beyond the development of an inventory or list of intangible heritage
items, nor is it based solely on legal mechanisms. Instead, the analysis of heritage law
and the findings at Angkor, suggest the development of a localised culturally-sensitive
mixed policy and law approach that is founded on the principles of cultural rights,
community participation and education incorporating local ideologies and ‘bottom-
up’ mechanisms. The thesis concludes that a full appreciation of the outstanding
universal value of heritage sites requires the research, respect and safeguarding of
intangible heritage. A draft policy document, which draws on these conclusions, has
been developed and is put forward to contribute to the safeguarding of ICH both at
Angkor and globally.
iv
Acknowledgements
My research has been assisted by numerous institutions in both Siem Reap and
Phnom Penh. In Siem Reap I have been affiliated with and used the facilities of the
APSARA Authority International Documentation Centre, the Ecole Française
d'Extrème Orient (EFEO), the Centre for Khmer Studies (CKS) and the University of
Sydney Robert Christie Research Centre. These institutions were tremendously
helpful in providing academic support, reference materials and research contacts. In
Phnom Penh several organisations assisted my research programme. I also thank
Reyum, UNESCO, RUFA, MoCFA and Heritage Watch.
The following academics, colleagues and associates have helped me in numerous
ways throughout my thesis. I offer my sincerest thanks to Tim Winter, Christophe
Pottier, Philippe Peycam, Nobuo Endo, Ang Choulean, Im Sokrithy, Damian Evans,
Philippe Delanghe, Lim Bun Hok, Ek Bunta, Hong Makara, Khuon Khun Neay, Peng
Sytha, Ly Daravuth, So Malay, Son Chanthoeun, Darryl Collins, Reinhart Zieger,
Richard Mackay, Dougald O’Reilly, Eileen Lustig, Martin Polkinhorne, Nathan
Wales, Jo Gillespie, Rowena Butland, Bess Moylan, and everyone from the Angkor
Research Programme at the University of Sydney. In particular, I thank Britt Baillie,
Fabienne Luco and Keiko Miura for access to their extensive research which has
formed the anthropological basis for much of this thesis. I am also extremely grateful
to the former APSARA Social Research Unit for access to their considerable
collection of reports and field data.
I express profound gratitude to the Cambodians who invited me into their lives to
witness their ceremonies, experience their traditions and share their knowledge with
me. These people have a wealth of intangible cultural heritage which should be
respected and acknowledged. I am truly indebted to the kindness of the Khmer
communities within the Angkor World Heritage Site.
Throughout my research I am grateful to have received financial support from The
University of Sydney in the form of a University Postgraduate Award (UPA) and
Postgraduate Research Support Scheme (PRSS) Funding, The Australian Department
of Education, Employment and Workplace Relations in the form of an Endeavour
v
Research Fellowship, and UNESCO through a UNESCO Fellowship in Support of
Programme Priorities.
Considerable gratitude goes to my supervisors, Emeritus Professor Ben Boer and
Professor Roland Fletcher. They have offered constant theoretical and practical
advice. In addition they have provided valuable direction, moral and academic
support, knowledge and feedback during my research. I thank them for their
indispensable assistance.
I owe a deep expression of appreciation to all my friends and family who have
supported me, offered encouragement and voluntarily (occasionally obligatorily) read
sections of this thesis. Thanks to everyone in both Sydney and Siem Reap.
vi
1. Introduction 1
1.2 Cambodia and Angkor 18
1.3 Conclusion 34
PART I Intangible Heritage Law 36
2. Foundations of Intangible Heritage Law and Links with Cultural Rights 37
2.1 Heritage Law 37
2.3 Conclusion 63
3. Analysis of the Current State of Intangible Cultural Heritage Law 65
3.1 International Protection Measures 66
3.2 Soft Law 83
3.3 Conclusion 101
4 National Implementation of Intangible Heritage Law and Safeguarding Issues 103
4.1 Translating International Law into Domestic Legislation 103
4.2 National Protection Measures 110
4.3 Potential Impacts of Legal Protection of ICH 124
4.4 Protecting ICH and Human Rights: an approach to the legal protection of ICH 138
vii
4.6 Conclusion 145
5. Heritage Law and Angkor 147
5.1 Legal Aspects of Angkor PreWorld Heritage Listing 147
5.2 World Heritage Listing 158
5.3 Law and Policy after World Heritage Listing 168
5.4 Limitations of Heritage Law and Policy 176
5.5 Recent Shifts in the Cambodian Heritage Discourse 179
5.6 Conclusions 186
6.1 Issues at Angkor 193
6.2 Intangible Cultural Heritage at Angkor 220
6.3 Safeguarding ICH at Angkor – Applying the principles 244
6.4 Findings 256
6.5 Conclusion 272
7. Local Communities and International Obligations 274
7.1 Local Ideas of Preservation, Protection, Law and Intangible Heritage 275
7.2 National Ideas of Culture 279
7.3 International Obligations and Ideologies and their Compatibility with Cambodian Values 286
7.4 Cultural Sensitivity and Safeguarding Approaches 289
7.5 Conclusion 292
8. Protecting Intangible Heritage through Policy 294
8.1 Using Policy to Ensure Protection of ICH 294
8.2 Cultural Policy in Cambodia 297
viii
Bibliography 315
ix
List of Figures Figure 1 Villages around Zone 1 of the Angkor World Heritage Site. ............................................... 18
Figure 2(a) Map of Southeast Asia c. 1907 (b) Map of Southeast Asia in the late 20th century. ... 19
Figure 3 Map of Cambodia. ............................................................................................................ 20
Figure 4 Monastery buildings in front of the North galleries of the first tier of Angkor Wat in 1909.28
Figure 5 Three huts for monks at the base of Angkor Wat before the front gallery in 1909. ............ 28
Table 1 States Parties to the Convention for the Safeguarding of the Intangible Cultural Heritage (as
at 11/06/2009) ..................................................................................................................... 48
Table 2 Sections of the 2008 Operational Directives for the Intangible Cultural Heritage Convention
and the corresponding relevant Articles in the Convention. .................................................. 78
Figure 6 Visiting Bakong during Khmer New Year ......................................................................... 202
Figure 7 Khmer New Year games at Bakong, Rolous. .................................................................... 202
Figure 8 Participating in Khmer New Year games at Bakong. ........................................................ 203
Figure 9 A young child takes a break during Khmer New Year festivities at Wat Athvea. ............... 203
Figure 10 Crowds at Wat Athvea during Khmer New Year. ........................................................... 203
Figure 11 Playing Leang Tien Pruck or tugowar at Wat Athvea. .................................................. 203
Figure 12 A street banner in Siem Reap (Jan 2009) stating that ‘Tourism brings Development’ ..... 208
Figure 13 The same banner in English .......................................................................................... 209
Figure 14 Street banner in Siem Reap (Jan 2009) clearly emphasising the active government policy
of tourism development ..................................................................................................... 212
Figure 15 Tourists taking a photo of a monk at Angkor. ................................................................ 214
Figure 16 The Structure of the APSARA National Authority .......................................................... 218
Figure 17 Wat and Angkorian ruins in Kampong Cham province. .................................................. 221
Figure 18 Wat Neang Rup and Angkorian ruins in Siem Reap province. ........................................ 222
Figure 19 The classification of spirits within Cambodian animistic beliefs. .................................... 225
Figure 20 Spirit offerings on boats during the 2007 Water Festival in Siem Reap. ......................... 227
Figure 21 Villages within the Angkor World Heritage Site. ............................................................ 233
Figure 22 Bowl pronak – one method used to communicate with spirits. ..................................... 235
Figure 23 Some of the traditional offerings (jom and slar tuor) given to spirits in order to appease
them. ................................................................................................................................. 235
Figure 25 Baisai and offerings for a ceremony in Angkor Wat. ...................................................... 238
Figure 26 Leang Neak ta ceremony in Wat Athvea. ...................................................................... 238
Figure 27 Leang Neak ta ceremony in Angkor Wat. ...................................................................... 239
Figure 28 The interaction of the spirit world and personal health in Cambodia. ............................ 241
Figure 29 Relationship between humankind and nature through culture of the village. ................ 243
x
Figure 30 Buffaloes around the moat of Angkor Wat in 1960. ....................................................... 265
Figure 31 Asia/Pacific Cultural Centre for UNESCO Approaches to Safeguarding ICH. .................... 300
Figure 32 Diagrammatic Representation for Safeguarding ICH. ..................................................... 300
xi
ADB Asian Development Bank
APSARA Autorité pour la Protection du Site et l’Aménagement de la Région d’Angkor (Authority for Protection and Management of Angkor and the Region of Siem Reap)
EFEO l’Ecole Française d’Extrème Orient (French School of Asian Studies)
ICC International Coordinating Committee for the Safeguarding and Development of the Historic Site of Angkor
ICH Intangible Cultural Heritage
ICOMOS International Council on Monuments and Sites
IP Intellectual Property
NGO Non-Governmental Organisation
WH World Heritage
WHC World Heritage Convention (1972 Convention Concerning the Protection of the World Cultural and Natural Heritage)
WHL World Heritage List
WHS World Heritage Site
WIPO World Intellectual Property Organisation
ZEMP 1994 Zoning and Environmental Management Plan for the Angkor World Heritage Site
xii
List of International Instruments 1899 Hague Convention (The First Hague Peace Conference)... 37
1907 Hague Convention (The Second Hague Peace Conference)... 37
1945 Charter of the United Nations... 50, 136, 172
1948 Universal Declaration of Human Rights... 50, 51, 55, 59, 89, 138, 140, 172, 248
American Declaration of the Rights and Duties of Man... 52
1950 European Convention of Human Rights... 53
1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict... 37, 38
1964 International Charter for the Conservation of Monuments and Sites (Venice Charter)... 37
1966 International Covenant for Economic, Social and Cultural Rights... 52, 55. 68, 89, 138, 139, 140, 248, 291
International Covenant on Civil and Political Rights... 53, 139, 140, 248
Declaration of Principles of International Cultural Co-operation... 54, 83, 84, 131, 139
1969 Vienna Convention on the Law of Treaties... 104, 106, 107, 109, 110
1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property... 38, 159, 168
1972 Convention Concerning the Protection of the World Cultural and Natural Heritage... 5, 13, 39, 44, 45, 66, 74, 76, 81, 89, 158, 168, 181, 186, 292
1976 Recommendation on Participation by the Peoples at Large in Cultural Life and their Contribution to it... 52, 139, 248
Universal Declaration of the Rights of Peoples... 53, 54
1978 Declaration on Race and Racial Prejudice... 52
1981 African Charter on Human and Peoples’ Rights... 52-55
xiii
1982 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions... 40, 60, 62, 253
Mexico Declaration on Cultural Policies... 7, 53, 82, 139
1989 Recommendation on the Safeguarding of Traditional Culture and Folklore... 9, 40, 43, 60, 83, 84
1989 International Covenant on the Rights of the Child... 52
1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities... 52, 53
1993 Vienna Declaration and Programme of Action (World Conference on Human Rights)... 53, 54, 58, 125, 139
1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)... 59
Nara Document on Authenticity... 84, 86, 87, 99, 127, 185
1996 World Intellectual Property Organization Copyright Treaty... 62
1997 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights... 54
1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters... 55
1999 The Australia ICOMOS Charter for Places of Cultural Significance (Burra Charter)... 84, 87, 88, 287
2000 ASEAN Declaration on Cultural Heritage... 84, 141
2001 Convention on the Protection of the Underwater Cultural Heritage... 39
UNESCO Declaration on Cultural Diversity... 43, 53, 54, 89, 139
2002 Charter for the Protection of Intangible Heritage (Shanghai Charter)... 84, 90
Istanbul Declaration on Cultural Diversity... 47, 83, 91
2003 Convention for the Safeguarding of the Intangible Cultural Heritage... 4, 9, 11, 39, 41, 44-48, 64, 66-68, 70, 72, 76-78, 82, 83, 91-94, 100, 103, 110, 112, 117, 124, 128, 133-135, 140, 142, 170, 181, 182, 186, 193, 216, 217, 244, 257, 259-263, 288, 292, 294, 297, 298, 303, 304
xiv
2004 Yamato Declaration on Integrated Approaches for Safeguarding Tangible and Intangible Cultural Heritage... 93, 94
Okinawa Declaration on Intangible and Tangible Cultural Heritage... 92, 95
2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions... 39, 44, 64, 66, 80, 81
Xi’an Declaration on the Conservation of the Settings of Heritage Structures, Sites and Areas... 93, 96
2007 Fribourg Declaration on Cultural Rights... 52, 54, 55, 247, 251, 268, 296, 298
Universal Declaration on the Rights of Indigenous Peoples... 93, 97
2008 Operational Guidelines for the Implementation of the World Heritage Convention... 39, 66, 67, 86
Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage... 48, 71-74, 78- 80, 103, 128, 137, 138, 303
2009 Hoi An Protocols for Best Conservation Practice in Asia... 92, 99, 127, 266
Chapter 1
1. Introduction
Scanning the shelves of any academic library’s collection of books written in English
on Cambodia reveals two dominant, and antithetical, focal points of interest: the
ancient glories of Angkorian splendour and the horrors of the modern Khmer Rouge
regime.1
This statement suggests a deficiency in the literature on Cambodian history and
heritage. While the Angkorian Khmer heritage has been researched and numerous
personal accounts and academic analyses on the Khmer Rouge period have been
published, very little has been produced on contemporary Khmer heritage and culture.
This thesis aspires in part to address this gap and provide a substantive contribution to
scholarly research on contemporary intangible cultural heritage in Cambodia, and in
particular its legal aspects.
I first became aware of the wealth of intangible cultural heritage (ICH) at Angkor in
December 2004. Like many other visitors to Angkor, I came for two days to see
Angkor Wat. At the time I did not realise that Angkor is much more than the temple
of Angkor Wat, or that I could barely scratch the surface of this amazing place in two
days. Although my visit was fleeting, I had time to witness and marvel at several old
women making and placing offerings at the base of a temple statue. Their manner was
clearly a reflection of devout religious belief. I was intrigued. In the guide books I
consulted, there was no mention of what the offerings were or why they were being
made. These books only made reference to Cambodians worshipping in Buddhist
Wats. I began a search for the answer that would lead me on a five year study of
Angkor and its intangible cultural heritage.
During this study I learned of the significance of animism in Khmer culture and the
importance of temple statues in these beliefs. Some temple statues are the physical
1 T Winter and L. C Ollier, 'Cambodia and the Politics of Tradition, Identity and Change' in L. C Ollier and T Winter (eds), Expressions of Cambodia: the Politics of Tradition, Identity and Change (2006), 5. The use of ‘ancient’ in this context is not an archaeological reference to the period of ancient history which is commonly understood to have culminated around 476 A.D. The Angkorian Empire existed after this period. Ancient in this case is simply an adjective to reference a time long ago.
Chapter 1
2
embodiment of guardian spirits known as Neak ta. I came to realise that what I
witnessed on my first visit to Angkor was the offering of traditional slar tuor to a
Neak ta in order ensure the health and wellbeing of both the women’s families and the
spirit. I also learned however, that the practice of beliefs is changing, that they can be
in conflict with tourism and management policies and that the awareness of the
intangible cultural heritage associated with the area is not widespread among visitors.
I used to visit the [Angkor Wat] temple a lot but now it is so busy. I just go when my
son has a problem to pray to Neak ta Reach to make him better and for the three days
of Miek month.2
Traditionally, every year in the month of Miek,3 Cambodians from villages around
Angkor Wat gather in the doorway of the west gallery to perform the annual
ceremony of homage to Neak ta Reach, the temple’s main guardian spirit (Neak ta).4
This ceremony exemplifies one of the intangible interactions that Cambodians have
with the temples of Angkor, an ongoing tradition of worship to tutelary spirits.
In modern times, in order to conduct the ceremony, the local community must obtain
permission from the management authority of Angkor, the APSARA Authority. This
permission allows them to burn incense, conduct communication with the spirit via a
spirit medium and play music within the temple, practices which, prior to the creation
of APSARA and current permission requirements, were carried out more regularly. In
recent years, to conduct the ceremony the participants have had to brave the
multitudes of tourists who walk past the statue embodying Ta Reach without
understanding the significance of the event. In some cases, these tourists unknowingly
offend the participants in the ceremony by knocking over offerings and intruding
2 Anecdote from a villager in Prasat Char Village. This anecdote is an example of intangible heritage associated with a major temple. It highlights the interaction that such practices have with the growth of tourism at Angkor. 3 Miek is a month in the Buddhist Cambodian calendar that is normally from the end of January until the end of February. 4 For further detail on Ta Reach see Chapter 6.
Chapter 1
during the ceremony, which can cause distress and negative ritual-related
repercussions for the Cambodians participating.5
This event of Neak ta homage at Angkor represents the important role that elements
of…
A thesis submitted in partial fulfilment of the
requirements for the degree of
Doctor of Philosophy
i
Abstract
Intangible cultural heritage (ICH) is a relatively recent addition to the corpus of
international heritage law. Traditional conservation theory, which is the foundation of
heritage law, has long delineated heritage only through physical manifestations such
as monuments, sites and objects. Intangible heritage does not fit into these categories.
To accommodate the introduction of living, non-material forms of heritage, the notion
of cultural heritage, as defined in legal instruments, is undergoing a phase of re-
conceptualisation. This thesis explores the shifts and divergence that have taken place
within the heritage discourse to accommodate the notion of ICH. It explores the
transformation of cultural heritage from its focus on tangible manifestations to a
broader understanding of heritage in both tangible and intangible forms and the links
between them. The conceptual development of intangible heritage reflects an
intellectual shift stemming from discourse in international forums and a general
criticism that monuments do not embody all forms of cultural heritage. This thesis
also examines the delineation of intangible cultural heritage within heritage law and
the broader discourse. It proposes to broaden the concept of ICH, as currently
conceived, as a set of characteristics which constitute the concept.
This thesis further explores how legislation relating to the heritage has been drafted
and how safeguarding mechanisms have been developed. The development of
intangible heritage theory and ICH law is shown to have been driven substantially by
the work of UNESCO. This work has culminated in the adoption of the Convention
for the Safeguarding of the Intangible Cultural Heritage (2003) (ICH Convention) and
the Convention on the Protection and Promotion of the Diversity of Cultural
Expressions (2005). In addition to these binding normative instruments, intangible
heritage law finds its source in soft law instruments—i.e. legal instruments that do not
provide legally-binding obligations. Soft law instruments are fundamental for the role
that they play in the development of legal precepts which often develop to become
customary law or jus cogens. Twelve soft law instruments are identified as having
made a substantial contribution to the development of ICH law. The precepts
enshrined within these documents inform safeguarding measures in legislative and
policy documents. This thesis presents a critical analysis of both hard and soft law
ii
instruments. It is argued that ICH law draws upon, and finds its foundation in, three
fundamental principles—the principles of cultural rights, the right to education and
the right to community participation. These rights are framed, in the context of this
study, as principles which developed within soft law and are further clarified within
the ICH Convention.
The critical analytical approach to intangible heritage law taken in this exploration
reveals a number of issues. The first issue is that the national legislative instruments,
and the mechanisms for safeguarding outlined within them, are still largely founded in
Western conservation theory and legal norms. This approach is not necessarily
reconcilable with the notion of ICH or the local realities of Asian legal systems. The
legal systems of many countries in Asia comprise not only state-based legal systems
but also unofficial legal systems based on social power structures and
customary/community law. The second issue is that there is a fundamental
inconsistency between the international and national legal frameworks on heritage
conservation. The Convention for the Safeguarding of Intangible Cultural Heritage
places strong emphasis on community participation. However, legislating at the
national level for the safeguarding of ICH to meet State Party obligations established
by the Convention results in a top-down approach that largely transposes Western
legal norms into non-Western legal contexts. On the one hand the Convention calls
for bottom-up community safeguarding measures, which would incorporate local
customary laws and values, and on the other it still relies heavily on top-down state
legal systems. This is particularly manifested in some Asian countries where aspects
of customary legal systems are themselves an element of the countries’ ICH and as
such are the object of safeguarding measures, yet may be in conflict with state legal
systems.
Through a practical examination of Cambodian heritage law, as applied to the Angkor
World Heritage Site, this thesis indicates that the legal framework that protects
Angkor is overwhelmingly focused on tangible heritage. The existing framework is
largely unchanged from that of the former French administration and reflects an
outdated Eurocentric notion of heritage in its physical form. The focus on the tangible
has been perpetuated since the World Heritage Convention was introduced by the
international emphasis placed on the preservation of the monuments. This thesis shifts
iii
the focus to Angkor’s intangible cultural heritage. The analysis highlights a
substantive gap in the legal framework and the need for a holistic management
approach that incorporates the safeguarding of both the physical and the intangible
cultural heritage. The thesis further explores, through the case study of Angkor, how
international obligations are interpreted and implemented at a local level. The
divergent ideologies of international law and policy, and of states and local
communities, are further highlighted. The role of local customary systems, in the
practice of intangible heritage, presents further conundrums that need to be examined.
In order to safeguard intangible heritage values a fine line must be walked between
the freezing of culture, the commodification of tradition, the commercialisation of
customs, the authenticity of practice, the maintenance of ethnicity and identity, the
realisation of cultural rights and the politicisation of heritage. The tackling of these
issues implies the need for a balance of competing forces–state and local, private and
public, law and custom – and presents both challenges and opportunities for the
protection of ICH. The findings presented in this thesis conclude that the safeguarding
of ICH necessitates a broader approach than that inherent in the ICH Convention. It
argues that further emphasis needs to be placed on local communities’ involvement in
safeguarding measures. This requires a fundamental power shift and a move away
from state-based regulatory frameworks as the sole means of protecting ICH. The use
of localised culturally-sensitive policy approaches, which incorporate community-
based legal systems and cultural rights theory, is one possible solution. This broader
approach goes beyond the development of an inventory or list of intangible heritage
items, nor is it based solely on legal mechanisms. Instead, the analysis of heritage law
and the findings at Angkor, suggest the development of a localised culturally-sensitive
mixed policy and law approach that is founded on the principles of cultural rights,
community participation and education incorporating local ideologies and ‘bottom-
up’ mechanisms. The thesis concludes that a full appreciation of the outstanding
universal value of heritage sites requires the research, respect and safeguarding of
intangible heritage. A draft policy document, which draws on these conclusions, has
been developed and is put forward to contribute to the safeguarding of ICH both at
Angkor and globally.
iv
Acknowledgements
My research has been assisted by numerous institutions in both Siem Reap and
Phnom Penh. In Siem Reap I have been affiliated with and used the facilities of the
APSARA Authority International Documentation Centre, the Ecole Française
d'Extrème Orient (EFEO), the Centre for Khmer Studies (CKS) and the University of
Sydney Robert Christie Research Centre. These institutions were tremendously
helpful in providing academic support, reference materials and research contacts. In
Phnom Penh several organisations assisted my research programme. I also thank
Reyum, UNESCO, RUFA, MoCFA and Heritage Watch.
The following academics, colleagues and associates have helped me in numerous
ways throughout my thesis. I offer my sincerest thanks to Tim Winter, Christophe
Pottier, Philippe Peycam, Nobuo Endo, Ang Choulean, Im Sokrithy, Damian Evans,
Philippe Delanghe, Lim Bun Hok, Ek Bunta, Hong Makara, Khuon Khun Neay, Peng
Sytha, Ly Daravuth, So Malay, Son Chanthoeun, Darryl Collins, Reinhart Zieger,
Richard Mackay, Dougald O’Reilly, Eileen Lustig, Martin Polkinhorne, Nathan
Wales, Jo Gillespie, Rowena Butland, Bess Moylan, and everyone from the Angkor
Research Programme at the University of Sydney. In particular, I thank Britt Baillie,
Fabienne Luco and Keiko Miura for access to their extensive research which has
formed the anthropological basis for much of this thesis. I am also extremely grateful
to the former APSARA Social Research Unit for access to their considerable
collection of reports and field data.
I express profound gratitude to the Cambodians who invited me into their lives to
witness their ceremonies, experience their traditions and share their knowledge with
me. These people have a wealth of intangible cultural heritage which should be
respected and acknowledged. I am truly indebted to the kindness of the Khmer
communities within the Angkor World Heritage Site.
Throughout my research I am grateful to have received financial support from The
University of Sydney in the form of a University Postgraduate Award (UPA) and
Postgraduate Research Support Scheme (PRSS) Funding, The Australian Department
of Education, Employment and Workplace Relations in the form of an Endeavour
v
Research Fellowship, and UNESCO through a UNESCO Fellowship in Support of
Programme Priorities.
Considerable gratitude goes to my supervisors, Emeritus Professor Ben Boer and
Professor Roland Fletcher. They have offered constant theoretical and practical
advice. In addition they have provided valuable direction, moral and academic
support, knowledge and feedback during my research. I thank them for their
indispensable assistance.
I owe a deep expression of appreciation to all my friends and family who have
supported me, offered encouragement and voluntarily (occasionally obligatorily) read
sections of this thesis. Thanks to everyone in both Sydney and Siem Reap.
vi
1. Introduction 1
1.2 Cambodia and Angkor 18
1.3 Conclusion 34
PART I Intangible Heritage Law 36
2. Foundations of Intangible Heritage Law and Links with Cultural Rights 37
2.1 Heritage Law 37
2.3 Conclusion 63
3. Analysis of the Current State of Intangible Cultural Heritage Law 65
3.1 International Protection Measures 66
3.2 Soft Law 83
3.3 Conclusion 101
4 National Implementation of Intangible Heritage Law and Safeguarding Issues 103
4.1 Translating International Law into Domestic Legislation 103
4.2 National Protection Measures 110
4.3 Potential Impacts of Legal Protection of ICH 124
4.4 Protecting ICH and Human Rights: an approach to the legal protection of ICH 138
vii
4.6 Conclusion 145
5. Heritage Law and Angkor 147
5.1 Legal Aspects of Angkor PreWorld Heritage Listing 147
5.2 World Heritage Listing 158
5.3 Law and Policy after World Heritage Listing 168
5.4 Limitations of Heritage Law and Policy 176
5.5 Recent Shifts in the Cambodian Heritage Discourse 179
5.6 Conclusions 186
6.1 Issues at Angkor 193
6.2 Intangible Cultural Heritage at Angkor 220
6.3 Safeguarding ICH at Angkor – Applying the principles 244
6.4 Findings 256
6.5 Conclusion 272
7. Local Communities and International Obligations 274
7.1 Local Ideas of Preservation, Protection, Law and Intangible Heritage 275
7.2 National Ideas of Culture 279
7.3 International Obligations and Ideologies and their Compatibility with Cambodian Values 286
7.4 Cultural Sensitivity and Safeguarding Approaches 289
7.5 Conclusion 292
8. Protecting Intangible Heritage through Policy 294
8.1 Using Policy to Ensure Protection of ICH 294
8.2 Cultural Policy in Cambodia 297
viii
Bibliography 315
ix
List of Figures Figure 1 Villages around Zone 1 of the Angkor World Heritage Site. ............................................... 18
Figure 2(a) Map of Southeast Asia c. 1907 (b) Map of Southeast Asia in the late 20th century. ... 19
Figure 3 Map of Cambodia. ............................................................................................................ 20
Figure 4 Monastery buildings in front of the North galleries of the first tier of Angkor Wat in 1909.28
Figure 5 Three huts for monks at the base of Angkor Wat before the front gallery in 1909. ............ 28
Table 1 States Parties to the Convention for the Safeguarding of the Intangible Cultural Heritage (as
at 11/06/2009) ..................................................................................................................... 48
Table 2 Sections of the 2008 Operational Directives for the Intangible Cultural Heritage Convention
and the corresponding relevant Articles in the Convention. .................................................. 78
Figure 6 Visiting Bakong during Khmer New Year ......................................................................... 202
Figure 7 Khmer New Year games at Bakong, Rolous. .................................................................... 202
Figure 8 Participating in Khmer New Year games at Bakong. ........................................................ 203
Figure 9 A young child takes a break during Khmer New Year festivities at Wat Athvea. ............... 203
Figure 10 Crowds at Wat Athvea during Khmer New Year. ........................................................... 203
Figure 11 Playing Leang Tien Pruck or tugowar at Wat Athvea. .................................................. 203
Figure 12 A street banner in Siem Reap (Jan 2009) stating that ‘Tourism brings Development’ ..... 208
Figure 13 The same banner in English .......................................................................................... 209
Figure 14 Street banner in Siem Reap (Jan 2009) clearly emphasising the active government policy
of tourism development ..................................................................................................... 212
Figure 15 Tourists taking a photo of a monk at Angkor. ................................................................ 214
Figure 16 The Structure of the APSARA National Authority .......................................................... 218
Figure 17 Wat and Angkorian ruins in Kampong Cham province. .................................................. 221
Figure 18 Wat Neang Rup and Angkorian ruins in Siem Reap province. ........................................ 222
Figure 19 The classification of spirits within Cambodian animistic beliefs. .................................... 225
Figure 20 Spirit offerings on boats during the 2007 Water Festival in Siem Reap. ......................... 227
Figure 21 Villages within the Angkor World Heritage Site. ............................................................ 233
Figure 22 Bowl pronak – one method used to communicate with spirits. ..................................... 235
Figure 23 Some of the traditional offerings (jom and slar tuor) given to spirits in order to appease
them. ................................................................................................................................. 235
Figure 25 Baisai and offerings for a ceremony in Angkor Wat. ...................................................... 238
Figure 26 Leang Neak ta ceremony in Wat Athvea. ...................................................................... 238
Figure 27 Leang Neak ta ceremony in Angkor Wat. ...................................................................... 239
Figure 28 The interaction of the spirit world and personal health in Cambodia. ............................ 241
Figure 29 Relationship between humankind and nature through culture of the village. ................ 243
x
Figure 30 Buffaloes around the moat of Angkor Wat in 1960. ....................................................... 265
Figure 31 Asia/Pacific Cultural Centre for UNESCO Approaches to Safeguarding ICH. .................... 300
Figure 32 Diagrammatic Representation for Safeguarding ICH. ..................................................... 300
xi
ADB Asian Development Bank
APSARA Autorité pour la Protection du Site et l’Aménagement de la Région d’Angkor (Authority for Protection and Management of Angkor and the Region of Siem Reap)
EFEO l’Ecole Française d’Extrème Orient (French School of Asian Studies)
ICC International Coordinating Committee for the Safeguarding and Development of the Historic Site of Angkor
ICH Intangible Cultural Heritage
ICOMOS International Council on Monuments and Sites
IP Intellectual Property
NGO Non-Governmental Organisation
WH World Heritage
WHC World Heritage Convention (1972 Convention Concerning the Protection of the World Cultural and Natural Heritage)
WHL World Heritage List
WHS World Heritage Site
WIPO World Intellectual Property Organisation
ZEMP 1994 Zoning and Environmental Management Plan for the Angkor World Heritage Site
xii
List of International Instruments 1899 Hague Convention (The First Hague Peace Conference)... 37
1907 Hague Convention (The Second Hague Peace Conference)... 37
1945 Charter of the United Nations... 50, 136, 172
1948 Universal Declaration of Human Rights... 50, 51, 55, 59, 89, 138, 140, 172, 248
American Declaration of the Rights and Duties of Man... 52
1950 European Convention of Human Rights... 53
1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict... 37, 38
1964 International Charter for the Conservation of Monuments and Sites (Venice Charter)... 37
1966 International Covenant for Economic, Social and Cultural Rights... 52, 55. 68, 89, 138, 139, 140, 248, 291
International Covenant on Civil and Political Rights... 53, 139, 140, 248
Declaration of Principles of International Cultural Co-operation... 54, 83, 84, 131, 139
1969 Vienna Convention on the Law of Treaties... 104, 106, 107, 109, 110
1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property... 38, 159, 168
1972 Convention Concerning the Protection of the World Cultural and Natural Heritage... 5, 13, 39, 44, 45, 66, 74, 76, 81, 89, 158, 168, 181, 186, 292
1976 Recommendation on Participation by the Peoples at Large in Cultural Life and their Contribution to it... 52, 139, 248
Universal Declaration of the Rights of Peoples... 53, 54
1978 Declaration on Race and Racial Prejudice... 52
1981 African Charter on Human and Peoples’ Rights... 52-55
xiii
1982 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions... 40, 60, 62, 253
Mexico Declaration on Cultural Policies... 7, 53, 82, 139
1989 Recommendation on the Safeguarding of Traditional Culture and Folklore... 9, 40, 43, 60, 83, 84
1989 International Covenant on the Rights of the Child... 52
1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities... 52, 53
1993 Vienna Declaration and Programme of Action (World Conference on Human Rights)... 53, 54, 58, 125, 139
1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)... 59
Nara Document on Authenticity... 84, 86, 87, 99, 127, 185
1996 World Intellectual Property Organization Copyright Treaty... 62
1997 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights... 54
1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters... 55
1999 The Australia ICOMOS Charter for Places of Cultural Significance (Burra Charter)... 84, 87, 88, 287
2000 ASEAN Declaration on Cultural Heritage... 84, 141
2001 Convention on the Protection of the Underwater Cultural Heritage... 39
UNESCO Declaration on Cultural Diversity... 43, 53, 54, 89, 139
2002 Charter for the Protection of Intangible Heritage (Shanghai Charter)... 84, 90
Istanbul Declaration on Cultural Diversity... 47, 83, 91
2003 Convention for the Safeguarding of the Intangible Cultural Heritage... 4, 9, 11, 39, 41, 44-48, 64, 66-68, 70, 72, 76-78, 82, 83, 91-94, 100, 103, 110, 112, 117, 124, 128, 133-135, 140, 142, 170, 181, 182, 186, 193, 216, 217, 244, 257, 259-263, 288, 292, 294, 297, 298, 303, 304
xiv
2004 Yamato Declaration on Integrated Approaches for Safeguarding Tangible and Intangible Cultural Heritage... 93, 94
Okinawa Declaration on Intangible and Tangible Cultural Heritage... 92, 95
2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions... 39, 44, 64, 66, 80, 81
Xi’an Declaration on the Conservation of the Settings of Heritage Structures, Sites and Areas... 93, 96
2007 Fribourg Declaration on Cultural Rights... 52, 54, 55, 247, 251, 268, 296, 298
Universal Declaration on the Rights of Indigenous Peoples... 93, 97
2008 Operational Guidelines for the Implementation of the World Heritage Convention... 39, 66, 67, 86
Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage... 48, 71-74, 78- 80, 103, 128, 137, 138, 303
2009 Hoi An Protocols for Best Conservation Practice in Asia... 92, 99, 127, 266
Chapter 1
1. Introduction
Scanning the shelves of any academic library’s collection of books written in English
on Cambodia reveals two dominant, and antithetical, focal points of interest: the
ancient glories of Angkorian splendour and the horrors of the modern Khmer Rouge
regime.1
This statement suggests a deficiency in the literature on Cambodian history and
heritage. While the Angkorian Khmer heritage has been researched and numerous
personal accounts and academic analyses on the Khmer Rouge period have been
published, very little has been produced on contemporary Khmer heritage and culture.
This thesis aspires in part to address this gap and provide a substantive contribution to
scholarly research on contemporary intangible cultural heritage in Cambodia, and in
particular its legal aspects.
I first became aware of the wealth of intangible cultural heritage (ICH) at Angkor in
December 2004. Like many other visitors to Angkor, I came for two days to see
Angkor Wat. At the time I did not realise that Angkor is much more than the temple
of Angkor Wat, or that I could barely scratch the surface of this amazing place in two
days. Although my visit was fleeting, I had time to witness and marvel at several old
women making and placing offerings at the base of a temple statue. Their manner was
clearly a reflection of devout religious belief. I was intrigued. In the guide books I
consulted, there was no mention of what the offerings were or why they were being
made. These books only made reference to Cambodians worshipping in Buddhist
Wats. I began a search for the answer that would lead me on a five year study of
Angkor and its intangible cultural heritage.
During this study I learned of the significance of animism in Khmer culture and the
importance of temple statues in these beliefs. Some temple statues are the physical
1 T Winter and L. C Ollier, 'Cambodia and the Politics of Tradition, Identity and Change' in L. C Ollier and T Winter (eds), Expressions of Cambodia: the Politics of Tradition, Identity and Change (2006), 5. The use of ‘ancient’ in this context is not an archaeological reference to the period of ancient history which is commonly understood to have culminated around 476 A.D. The Angkorian Empire existed after this period. Ancient in this case is simply an adjective to reference a time long ago.
Chapter 1
2
embodiment of guardian spirits known as Neak ta. I came to realise that what I
witnessed on my first visit to Angkor was the offering of traditional slar tuor to a
Neak ta in order ensure the health and wellbeing of both the women’s families and the
spirit. I also learned however, that the practice of beliefs is changing, that they can be
in conflict with tourism and management policies and that the awareness of the
intangible cultural heritage associated with the area is not widespread among visitors.
I used to visit the [Angkor Wat] temple a lot but now it is so busy. I just go when my
son has a problem to pray to Neak ta Reach to make him better and for the three days
of Miek month.2
Traditionally, every year in the month of Miek,3 Cambodians from villages around
Angkor Wat gather in the doorway of the west gallery to perform the annual
ceremony of homage to Neak ta Reach, the temple’s main guardian spirit (Neak ta).4
This ceremony exemplifies one of the intangible interactions that Cambodians have
with the temples of Angkor, an ongoing tradition of worship to tutelary spirits.
In modern times, in order to conduct the ceremony, the local community must obtain
permission from the management authority of Angkor, the APSARA Authority. This
permission allows them to burn incense, conduct communication with the spirit via a
spirit medium and play music within the temple, practices which, prior to the creation
of APSARA and current permission requirements, were carried out more regularly. In
recent years, to conduct the ceremony the participants have had to brave the
multitudes of tourists who walk past the statue embodying Ta Reach without
understanding the significance of the event. In some cases, these tourists unknowingly
offend the participants in the ceremony by knocking over offerings and intruding
2 Anecdote from a villager in Prasat Char Village. This anecdote is an example of intangible heritage associated with a major temple. It highlights the interaction that such practices have with the growth of tourism at Angkor. 3 Miek is a month in the Buddhist Cambodian calendar that is normally from the end of January until the end of February. 4 For further detail on Ta Reach see Chapter 6.
Chapter 1
during the ceremony, which can cause distress and negative ritual-related
repercussions for the Cambodians participating.5
This event of Neak ta homage at Angkor represents the important role that elements
of…
Related Documents
